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Trial court finds plausible disparate impact national origin claim based on use of false Social Security Numbers by undocumented aliens

In Guerrero v. Cal. Dep’t of Corr. & Rehab. N.D. Cal., No. 3:13-cv-05671, a federal district court in California denied the California Department of Corrections and Rehabilitation’s (“CDCR”) Motion to Dismiss Plaintiff’s Title VII disparate impact claim, and instead found plausible the plaintiff’s disparate impact claim based on CDCR’s policy of refusing to hire applicants on the basis of a prior use of a false social security number. The claim alleged the policy had an adverse impact on a class of Latinos, a protected class based on national origin. The court rejected CDCR’s argument that plaintiff’s disparate impact claim was based on immigration status only, which is not a protected class under Title VII.

In August 2011, Victor Guerrero applied for a job as a Correctional Officer with the CDCR. As part of the screening process, he had to complete a written exam, physical agility test and submit to a background investigation. The background check required Guerrero to complete a background questionnaire. Among other things, the questionnaire asked whether Guerrero had previously used a Social Security Number (“SSN”) other than the one he was using on the questionnaire. Guerrero answered yes, though he sought to explain the circumstances. Because of Guerrero’s previous use of the false SSN, CDCR denied his application for employment. According to Guerrero, the reason CDCR gave for denying his application was that, by knowingly using a false social security number, he did not satisfy the general qualifications of integrity, honesty and good judgment.

In 2013, Guerrero again applied for a Correctional Officer position with the CDCR. He was required to complete the same background questionnaire, containing the same question about previous use of a SSN other than the one used on the current application. Guerrero answered the question in the affirmative. His employment application was denied a second time.

Following the second denial, Guerrero filed an EEOC Charge of Discrimination. The EEOC did not complete its investigation or make any findings; rather, Guerrero requested and received a notice of right to sue. A federal lawsuit followed, with Guerrero arguing that he had been discriminated against based on his national origin. Specifically, Guerrero claims that the CDCR’s disqualification of applicants who have previously used false SSN numbers has an adverse and disproportionate impact on national origin minorities such as Latinos.

CDCR sought dismissal, contending that the claim was really based on Guerrero’s former immigration status, rather than his national origin. CDCR pointed to a Supreme Court decision which held that “national origin discrimination as defined in Title VII encompasses discrimination based on one’s ancestry, but not discrimination based on citizenship or immigration status.” Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973).

The District Court disagreed, perfunctorily rejecting CDCR’s claim that the disparate impact complaint was based on immigration status, and instead, agreeing that it was based on a class of Latinos, and therefore stated a plausible claim of national origin disparate impact discrimination under Title VII.

The disparate impact theory of liability focuses on the discriminatory consequences of facially neutral policies or practices. Under the theory, such policies or practices may be unlawful if there is a significant disparate impact on a protected group, and cannot be justified based on business necessity. National origin is a protected group and, in the past, has typically been limited to discrimination based on ethnicity, physical, linguistic, or cultural traits and perception.

The Court’s finding that Guerrero stated a plausible Title VII disparate impact claim based on national origin is interesting because a major argument in Guerrero’s claim is that a particular group, Latinos, suffer a disparate impact not because of any of the characteristics referenced above, but because of the likelihood they have more immigration status issues than other groups. This theory has not previously been recognized.

The district court’s recognition of this theory is important, despite it being only a denial of a motion to dismiss. First, it reiterates that, in the abstract, any neutral policy that screens out applicants can form the basis of a disparate impact claim if it has a disproportionately adverse impact on a category of individuals within one of the protected classes under Title VII. Second, given the large number of Latino workers in the United States, this ruling could encourage others to pursue this theory. Finally, the court’s willingness to accept a creative argument around the Supreme Court’s general rejection of immigration status as a basis for national origin discrimination should serve as a reminder and warning to employers. General rules of thumb—such as immigration status not being a protected class, are not complete defenses and employers should be examining their workforces and selection policies with an eye toward mitigating the risk of disparate impact claims.